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U.S. v. OSTROFF

May 13, 2004.

UNITED STATES OF AMERICA -against- BRIAN OSTROFF, a/k/a "Jassett Byron," a/k/a "Zachary A. Maxwin," a/k/a "Max Gould," a/k/a "Connor Beresford," a/k/a "Byron C Beresford," a/k/a "Balzac B. Vandergrift," a/k/a "Andre Armitage," Defendant


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

On October 29, 1993, agents of the Federal Bureau of Investigation arrested, fingerprinted, and processed defendant Brian Ostroff in New York.' He was not charged, and was released the following day. On January 11, 1994, Ostroff was indicted in this district for violating section 1001 of Title 18 (the "Indictment"). Specifically, he was charged with identifying himself as *fn1 Max Gould" when he was questioned by an FBI agent on October 29, 2003; the Government contends that this statement was materially false. It was not until September 16, 2003, that Ostroff was arrested on this Indictment. Not surprisingly, he now moves to dismiss the Indictment on the ground that the Government has violated his Sixth Amendment right to a speedy trial.

 I. BACKGROUND

  According to the Government, on October 29, 1993, Brian Ostroff told Special Agent Mark Thomas Rossini that his name was "Max Gould," and "never told the law enforcement agents his real name." Government's Memorandum in Opposition to the Defendant's Motion to Dismiss the Indictment ("Gov't Opp.") at 2. The Government did not learn until "later" that the defendant's real name is Brian Ostroff. See id. at 2. Nonetheless, by January 11, 1994, the Government had figured out Ostroff's name,*fn2 because on that day the Grand Jury returned the Indictment styled "United States v. Brian Ostroff"*fn3 See Indictment, Ex. A to the Affirmation of Robert M. Baum ("Baum Aff."), defendant's counsel. The following day, a warrant was issued for Ostroff's arrest.

  A. The Defendant's Post-Indictment Conduct

  Ostroff claims that until he was arrested in 2003, he was unaware of the Indictment. From 1993 until 2000, his permanent address was in South Fallsburg, New York. Notably, this was also his address at the time of his 1993 arrest. Between 1997 and 1999, Ostroff lived in Boston; he filed a "temporary forwarding of mail" with the South Fallsburg post office, identifying his postal address in Boston. See 3/25/04 Affirmation of Brian Ostroff ("Ostroff Aff") ¶¶ 4, 8.

  While in Boston, Ostroff was arrested twice, once in 1997 and once in 1999. On both occasions, he identified himself as "Nicholas Young," his "stage name." See id. ¶ 8. Though it is not clear how long Ostroff was detained following the 1997 arrest, the 1999 arrest led to a one month incarceration. See Def. Rep. at 6. Before being released in both 1997 and 1999, Ostroff was fingerprinted; he was specifically told that his prints would be used to conduct a "warrant check" with the FBI. Following the fingerprinting, Ostroff was informed that no other cases were pending against him, and there were no outstanding warrants for his arrest. See Ostroff Aff. ¶ 8. In 2000, Ostroff moved to Delray Beach, Florida, and resided openly and continuously under his own name and at the same address. Sometime in 2000, Ostroff applied for a replacement Social Security card, appearing in person at the Social Security Administration, where he was required to complete official paper work. The same year, he obtained a library card in Palm Beach County. He also registered with the Florida Department of Children and Family Services as the care giver for his mother, who suffers from Alzheimer's Disease. See id. ¶¶ 11, 12, 15, 16. On September 11, 2000, Ostroff registered to vote under his Delray Beach address. See id. ¶ 12; Voter Registration Card, Ex. D. to the Baum Aff

  Between 2001 and 2003, Ostroff continued to live openly under his own name. Throughout 2001, he attended Dade County Community College as a registered student. See Ostroff Aff. ¶ 13. On May 9, 2001, the Florida Department of Motor Vehicles issued a driver's license to Ostroff, identifying his Delray Beach, address. See Photocopy of Driver's License, Ex. B to the Baum Aff. And on June 5, 2002, Ostroff registered his automobile with the State of Florida. See Ostroff Aff. ¶ 14; State of Florid Automobile Certificate of Title, Ex. E to the Baum Aff. That registration listed his Delray Beach address. See id. He also voted in elections. Finally, throughout the period 1993 to 2003, Ostroff purchased airline tickets on major airlines, and rented cars from national car rental companies, under his own name. See Ostroff Aff. ¶¶ 7, 12.

  B. The Government's Post-Indictment Conduct

  The Government submits that throughout the period spanning January, 1994 through September, 2003, it "diligently" sought to apprehend Ostroff. Specifically, in 1994, the FBI briefly placed a pen register on Ostroff's sister's telephone, and informed Ostroff's father that there was an outstanding warrant for Ostroff's arrest.*fn4 In both 1994 and 1995, the FBI notified the South Fallsburg Police Department of the outstanding warrant, and the Police Department agreed to "periodically surveil" Ostroff's permanent address, though it appears that the FBI never followed up with the Police Department. The FBI also informed the Immigration and Naturalization Service of the warrant in 1994. See Affirmation of James H. Hilliard, Jr., Special Agent with the FBI ("Hilliard Aff"), Ex. A to the Gov't Opp. ¶¶ 2(a), 2(b), 2(d), 2(c), 2(e).

  In the following years, the FBI did annual "criminal history checks" for Ostroff, and periodically executed "Department of Motor Vehicle checks". See id. ¶¶ 2(f), 2(h), 2(i), 2(m), 2(p), 2(q), 2(t). In 1995, the FBI served a grand jury subpoena on financial institutions purportedly used by Ostroff. These "checks" and the subpoena apparently revealed no information regarding Ostroff's whereabouts.

  In 1997, the Cambridge, Massachusetts Police Department informed the FBI that it had recovered a car registered to Ostroff's father, and known to be used by Ostroff. The following year, the Suffolk County (Massachusetts) District Attorney's Office informed the FBI that in 1997, Brian Ostroff, using the name "Nicholas Young," had been arrested in Boston and released. See id. ¶¶ 2(k), (1). It does not appear that the FBI followed up on any of this information; it is unclear whether the FBI was even aware that Ostroff, still using the name "Nicholas Young," was arrested in Boston again in 1999, and held in custody for one month.

  In June, 2001, the FBI determined, through a database inquiry, that Ostroff was living in Miami, Florida. A year later, in May, 2002, the FBI performed another database inquiry, and determined that Ostroff was living in Delray Beach, Florida. The following January, FBI agents went to the Delray Beach address and interviewed Ostroff's mother; according to the FBI, she did not provide specific details about his whereabouts, and was "evasive."*fn5 In the following months, ...


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